SALAH-UD-DIN, J.- This order shall dispose of application of present petitioner namely Abdul Malik, for his release on bail, in case FIR No. 123 dated 16.3.2024, U/Ss 302,324,148,149, 3374 337-F (iii) 200, 201 PPC, R/W section 15-AA further R/W 512 Cr.P.C of P.S Khursheed Khan Shaheed (Khwaza Khela), District Swat, on account of statutory delay in conclusion of his trial.
2. As per contents of ibid FIR, injured/complainant namely Khalil-ur-Rahman reported the matter to local police at casualty ward of Khwaza Khela hospital, whereby he has charged present petitioner namely Abdul Malik, along with other co-accused for committing murder of his wife namely Mst.
Shazia, wherein present petitioner was assigned the role of causing injury on head of complainant with a cement block. Motive behind the occurrence was disclosed to be a dispute over landed property. In view of report of complainant, Murasila' was drafted which culminated into ibid FIR registered against present petitioner and other co-accused at P.S concerned.
3. Arguments of learned counsel for parties as well as learned Astt: A.G for State were heard and requisitioned record gone through with their valuable assistance.
4. It divulges from bare perusal of record that present petitioner namely Abdul Malik was arrested in the case in hand on 16.3.2024. Challan was put in Court before learned trial Court on 11.7.2024.
Charge was framed against present petitioner on 25.7.2024. It is also an admitted fact floating on surface of record that earlier attempts of present petitioner qua grant of post arrest bail were ended failure up to august Supreme Court of Pakistan, on merits. Now through instant petition, petitioner seeks his release on bail on the fresh ground of statutory delay in conclusion of his trial within the ambit of 3rd proviso to section 497 (1) Cr.P.C, after his such plea at first instance was answered in negative by learned trial Court by dint of impugned order dated 18.3.2025.
5. At very inception, learned counsel for petitioner was confronted with the fact that petitioner in the instant case was arrested on 16.3.2024 and till date he (petitioner) has served-out more than one year in jail, whereas statutory period of two years since arrest of petitioner is going to be mature on 16.3.2026, then why and for what reason, learned counsel for petitioner has been making resort to this Court for release of petitioner on bail. when admittedly his statutory period of two years has not yet been matured.
6. Learned counsel for petitioner has come up with his own defence in terms that since present petitioner namely Abdul Malik, in view of contents of FIR has only been charged for inflicting injury on head of complainant with a cement block, therefore, his case could at the most be that of an attempt of murderous assault within the meaning of section 324 PPC instead of 302 PPC and in such eventuality, under 3rd proviso to section 497 Cr.P.C sub-section (1), (a), petitioner has already served-out his statutory period of one-year. At that juncture, learned counsel for petitioner was reminded of the fact that present petitioner along with co-accused have also been saddled for sections 148 & 149 PPC for being members of an unlawful assembly in prosecution of their common object and which an offence U/S 149 PPC carries punishment of death or life imprisonment and above all the very charge was also framed against present petitioner and other co-accused in view of their joint liability under aforesaid sections of law, therefore, in all eventuality, statutory period of petitioner would be two years and not the other way around. In order to clarify, joint liability of all the nominated accused including present petitioner, relevant part of charge framed against accused within the meaning of section 302,R/W sections 148/149 PPC is reproduced hereunder for ready reference: - Secondly; that at the given time, date and venue, you with absconding accused Sher Malik son of Toor Lali, c members of unlawful assembly and in prosecution of Abdul Malik, Habib-ur- Rahman and Namdar-ur-Rahr wife of Khalil-ur-Rahman with intent to commit her with fire shots of absconding accused Sher Malik and an offence of Qatl-eamd punishable under section and within my cognizance.
"Fourthly: that at the given time, date and venue, you accused Abdul Malik, Habib-ur-Rahman and Namdar-ur-Rahman being members of an unlawful assembly and in in prosecution of common object with co-accused Israr-ur-Rahman and absconding accused Sher Malik assaulted Khalil-ur-Rahman son of Toor Lali due to which he got injured on his head with a blow of cinder block of you accused Abdul Malik while got injured on other parts of his body with blows of you accused Habib-ur-Rahman and Namdar-ur-Rahman thus you all have committed offences punishable under sections 337-A(il) and 337-F(iii) PPC read with section 149 PPC and within my cognizance.
Likewise, sections 148 & 149 of Pakistan Penal Code, would be relevant qua joint liability of accused nominated in case in hand, which are also reproduced as under: -
148. Rioting, armed with deadly weapon: Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object: - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
In case titled "Muhammad Nawaz alias Deno & another v/s State" reported as 2003 MLD 79, whereby, Hon'ble Karachi High Court held as under: - "In the present case, the applicants were charged under sections 302 and 324 PPC, and the minimum custody period of under the repealed third proviso to section 497 (1) Cr.P.C had not yet elapsed. The Court noted that the trial Court was marking sincere efforts to proceed with the case and therefore refused bail."
Similarly, in case titled "Javed Ali v/s State" reported as 2000 YLR 2581, it was held by Hon'ble Lahore High Court has held "that petitioner sought post-arrest bail under the third proviso to section 497 (1) Cr.P. C, on the ground of prolonged incarceration exceeding two years without commencement of trial. He was charged, along with co-accused, U/Ss 302,324 & 148,149 PPC, in a case involving the death of two individuals and injuries to several others. Although the petitioner argued that no specific injury was attributed to him and that the delay was not due to any fault on his part, the Court found otherwise. The trial had not begun due to repeated absence of the co-accused, which contributed to the delay, and the petitioner was considered jointly responsible.
The Court relied on 1998 SCMR 897, holding that where delay is attributable to the accused or co- accused, the benefit of statutory bail under the third proviso is no available.
Further reliance is placed on the judgment of Hon'ble Lahore High Court, rendered in case titled "Bashid Ahmad & 03 others vs State", reported as 1999 YLR 827, whereby relief of bail was refused to both the nominated accused in view of their joint liability qua non-conclusion of trial within the statutory period of two years, in the following manner: - "Three accused were in jail for the last two years, three months and 22 days whereas other accused was in jail for the last two years, one month and two days. Adjournments during the entire period had been sought for about three months either by the accused themselves or their counsel acting on their behalf. Relief of bail on the ground of statutory delay could not, therefore, be solicited by the accused. Petitions for bail were dismissed accordingly."
7. In view of above, learned counsel for petitioner though argued the case at a substantial length, however, he could not satisfy judicial conscience of the Court with regard to his alleged plea of statutory period of one-year, in view of the role assigned to present petitioner in the FIR, whereby he was only indicted for causing injury on the head of complainant within the meaning of section 324 PPC, therefore, such arguments of learned counsel for petitioner hold no water, hence, discarded and set at naught in view of clear- cut provisions of 3rd proviso to section 497 (1) Cr.P.C.
8. In view of what has 'been discussed above, instant bail petition stands dismissed, however, learned trial Court shall expedite trial proceedings and conclude the same within two (02) months positively, upon receipt of order of this Court. No unnecessary adjournment shall be granted to either side except on genuine reasons.
9. On eve of acceptance of Cr.M No. 127-M of 2025, section 337- A(ii::) PPC shall be treated as part and parcel of instant bail order.